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Wednesday, February 27, 2013

Easement Rider

Welcome to our new regular feature, Ask the SCOV. Today’s letter
comes from a property owner in South Burlington. He asks:

Dear SCOV,

Does a permanent easement
ordered in the context of one project apply to future projects when there is no
mention of the first project in the easement?

Sincerely,

Plaintiff-Appellant

Well, it seems our letter writer sent his question straight
to the Court and got the following response:

Dear Plaintiff-Appellant,

Yep.

Yours truly,

The SCOV

Thank you for reading, Ask
the SCOV. We now return to our
regularly scheduled summary already in progress.

Plaintiff in this case owns a South-Burlington parcel of
land. In the early 1970s, Vermont
Electric Power Company and Vermont Transco (VELCO) obtained a certificate of
public good for the Queen City Tap Project, an
electrical-transmission-line-construction project. In ’76, the Public Service Board issued an
order “condemning a permanent easement” on Plaintiff’s property for the
installation of power-transmission lines and equipment. The easement, by its terms, was broad. Plaintiff was paid for the taking; VELCO
installed a three-line-transmission setup on Plaintiff’s property in connection
with the Queen City Project in ’77 and all was apparently well for the rest of
the Carter administration and the succeeding three decades.

VELCO got another certificate of public good for a different
project in 2005. And then, in 2008, VELCO
installed a ten-line-transmission setup on Plaintiff’s property. In 2010, Plaintiff filed suit alleging that
the new line was a material overburdening of the property and that he was
entitled to damages for the increased use and taking. VELCO moved for summary judgment.

Plaintiff argued that there was a genuine issue of material
fact as to whether the new towers overburdened the property. He pointed out that the new towers were
taller, gave the property a much different look, and if they fell, they might
land on his adjoining property. He also
argued that the scope of the easement was limited to the Queen City
project.

The trial court granted summary judgment for VELCO because
the easement’s plain language placed no limitations on VELCO’s easement, and
some of the language was actually forward-looking as to new lines (“now or
hereafter”). Plaintiff appealed.

At the SCOV, it’s a yell-into-the-canyon appeal: Plaintiff
echoes his arguments, and the SCOV echoes the trial court.

On appeal the SCOV applies the same standard as the trial
court. If there are no genuine issues of
material fact, and VELCO is entitled to judgment as a matter of law, then the
SCOV will affirm. Plaintiff gets the standard
“benefit of the doubt” on disputes about factual issues.

The SCOV first explains that obtaining a public-utility
condemnation easement is a two-step process.
First, the utility must obtain a certificate of public good. Second, the utility must petition the
Board. Following hearing, the Board must
find, among other things, that the proposed use is necessary for the utility to
provide adequate service to the public.
VELCO got a certificate of public good for the new project.

Should condemnation easements be interpreted the same way as
easement deeds? The SCOV answers in the
affirmative, relying on cases from Alabama and Kentucky. Having concluded that condemnation easements
should follow the same rules of construction as easement deeds, the SCOV notes
that the plain terms of the easement will control.

The SCOV concludes that “the easement unambiguously
authorized VELCO to construct other lines on the Property.” The SCOV, like the trial court, notes the
condemnation order’s “now or hereafter” language. VELCO can certainly install new lines on
Plaintiff’s property under the plain language of the easement. So, the SCOV reasons, even though the
original easement was obtained in the context of the Queen City project, the
easement is broader than its roots, so to speak. The SCOV concludes that installation of the
new lines was authorized.

The SCOV next considers whether the new lines overburden the
easement. Because the SCOV concludes that the
condemnation easement’s express language authorizes “installation and
maintenance of towers, poles, lines, and other infrastructure on the Property” the
new lines do not overburden the property.
Again, the Queen City project doesn’t serve to limit the easement by its
express terms.

The SCOV concludes that the new lines do not impose an
additional burden on the Property. The
SCOV dismisses Plaintiff’s argument that the new towers are taller and could
fall on adjoining land as speculative.
Finally, the SCOV notes that the 1976 Order recited compensation for the
full value of the land. And so, the SCOV concludes that the trial
court properly ruled in favor of VELCO on its motion for summary judgment.

Chief Justice Reiber concurs and dissents because he
believes a question of fact remains as to whether the new lines impose an
additional burden, warranting compensation.
The primary issue the Chief Justice takes with the majority’s reasoning
is its focus on the language of the easement in isolation from the proceeding
in which it was obtained.

He explains: “In focusing exclusively on the language of the
Farrell easement in isolation, the majority here overlooks relevant provisions
of the petition and order in which it appears.”
The Chief Justice notes that the underlying proceeding was based on a
request to install a singular line on Plaintiff’s Property, not several
lines.

The purpose of a taking defines its scope. The Chief Justice asserts that the easement language
in isolation misses the purpose of the original taking. And though the Chief Justice agrees that the
new lines are consistent with the general nature of the easement, he notes that
the burdened estate may be entitled to further compensation if the new use is
more onerous than originally expected.

And so, the Chief Justice concludes that the Plaintiff
should be allowed to demonstrate damages from the additional burden on his
property.